Pages

"When they allow a talk show host to play them like a two-dollar banjo, they demonstrate what kind of backbone they'll bring to the job later on, if we elect them. After they get elected will they continue to allow Jeff Crank to put a nickel in them and wind them up every Saturday morning?"

Barry Noreen, former columnist, Colorado Springs Gazette

Wednesday, April 18, 2012

BREAKING FAITH

By

ROBERT HARKINS

President Obama contends that the United States Supreme Court, an unelected group of people, has no right to address the constitutionality of laws passed by the legislature and signed by the president. The president’s theory were it true would make the legislature the supreme law of the land, the president a tyrant and the Supreme Court a cheering gallery.

The president’s criticism of the Supreme Court Justices—a criticism from which he is now in ignominious retreat— finds support in the hard-core doctrine of “Positivism.” The positivist theory holds that a natural law, that is, a law accessible to reason, a law derived from the customs and traditions of a Western people, is an irrational and decadent mythology, a fable told to children, addled adults and an impediment to the use of totalitarian force. Indeed, the very idea that men are endowed by their creator with certain self-evident, natural and unalienable rights is patently absurd.

The legislature’s laws duly past are not legal because they are constitutional. Neither are its laws legal because they may be coincidentally amenable to the traditions of its people. Its laws are legal because they are an expression of the legislative will! No further justification need be made. Accordingly, it not untoward to claim that the president’s executive order is legal and therefore uncontestable simply because it is the passing expression of his will. The rule of law, constitutional government and individual sovereignty are cut to the quick; and absolute power, fixed and immutable, is carved in positivist stone. F.A. Hayek writes that,

“(…every single tenet of the traditional conception of the rule of law is represented as a metaphysical superstition…. The law by definition consists exclusively of deliberate commands of a human will.”[1]

But then who will command? Will it be a legislature impregnable to reason, a shield against the law, a fortress wherein a gang will rule unbound by constitutional principles and moral traditions? Or will it be one president alone, an executive whose command or passing whim all must obey or face his wrath?In his analysis of the positivist theory F. A. Hayek writes,

“It was consequently here that the ideal of the rule of law was first deprived of real content. The substantive conception of the Rechtsstaat; [a state bound by the rule of law] which required that the rules of law possess definite properties, was displaced by a purely formal concept which required merely that all action of the state be authorized by the legislature.

If positivist law is legal simply because a would be dictator, legislature, or leviathan bureaucracy says that it is; and if the law is merely the executive will of one man alone then the people so ruled must learn to grovel, to kneel supine, to bow their heads. They must take up the life of a serf indentured to the state and its acolytes. They must accustom themselves to the whim of such implacable powers as in the human struggle will come to be and fall and rise—according to the laws of history, tooth and claw.

The problem thus became one of mere legality. By the turn of the century it had become accepted doctrine that the “individualist” ideal of the substantive Rechtsstaat [a state bound to the principles of natural law] was a thing of the past, “vanquished by the creative powers of national and social ideas…. This new formulation, known as the “pure theory of law” …signaled the definite eclipse of all traditions of limited government.” [2]

There is, however, a better way. It lies in the strictest subordination of a limited central government to the rule of law, to the enumerated powers of an American Constitution, to the customs, traditions and common law of an American people. American government executive, legislative and judicial is breaking faith with this tradition; and in the breaking of its faith is wrecking our unalienable right to life, liberty and property—to the pursuit of happiness. We continue to tolerate its betrayal at our most certain peril.

Hayek’s magnum opus, The Constitution of Liberty was written long before America’s present constitutional crisis. Still, Americans should recall and take his words to heart, for

Only a demagogue can represent as “antidemocratic” the limitations which long-term decisions and the general principles held by the people impose upon the power of temporary majorities. These limitations were conceived to protect the people against those to whom they must give power, and they are the only means by which the people can determine the general character of the order under which they will live.